KHUSI LAL Vs. STATE

JUDGEMENT

(1.) THIS reference has been made by the learned Tempo rary Civil and Sessions Judge, Agra.

(2.) BRIEFLY stated the facts giving rise to this reference are that plot nos. 210 and 209 are situate to the west of plot no. 211. Plot no. 210 is to the north of plot no. 209. Plot no. 209 belonged to one Phuljhari and plot nos. 210 and 211 belonged to Smt. Saraswati, accused no. 4. The complainant and his brothers were cotenants of plot no. 222 and they used to irrigate this plot from the Government Tubewell no. 1 for the last several years before the filing of the complaint. A pucca water channel of the said tubewell runs from east to west. It used to take a turn towards the complainant's plot. The accused persons also irrigated their fields from the same tubewell. In February, 1971 all the four accused persons damaged the old water channel existing between plot nos. 210 and 211 and in its place constructed a new water course of lesser dimensions. Accord ing to the complainant, the accused persons were not authorised to remove the water channel and the new one was not sufficient for irrigation of their fields. Therefore, the complaint was filed on 16-12-1971 for prosecution of the accused under Section 70 of the Northern India Canal and Drainage Act. The accused persons denied that there was any water channel at that place from which the complainant irrigated his plot. The learned Canal Magistrate, however came to the con clusion that there was water course which was damaged by the accused persons. Therefore, he convicted all the accused persons under Section 70 of the said Act and sentenced them as mentioned in the judgment. The accused persons filed an appeal which was rejected by the III Assistant Sessions Judge, Agra. He agreed with the con clusions arrived at by the Canal Magis trate. Thereafter the accused persons filed a revision before the District Judge which was heard by the Temporary Civil and Sessions Judge, Agra. He accepted the findings of the two lower courts that there was a water channel on the intervening mend of plot nos. 210 and 211 and that it was demolished by the accused persons. He, however, held that the accused persons were authorised to remove it and committ ed no offence under Sec. 70 of the Act. He, therefore, made this reference for setting aside the order of conviction passed by the Canal Magistrate and the Assistant Sessions Judge. I have heard the learned counsel for both sides and have given my anxious consideration to the whole matter. There can be no manner of doubt that it was established from the material on the record that a water channel existed on the mend between plot nos. 210 and 211, and it was demolished by the accused persons. Admittedly plot nos. 210 and 211 belong ed to opposite party no. 4. Section 70 of the Northern India Canal and Drain age Act lays down that whoever without proper authority and voluntarily damages, alters and encroaches or obstructs any cannal will be liable for prosecution. The words "without pro per authority" are very significant. As held in the case of Moola Singh v. Surendra Singh(1960 A. W. R, 363.), an offence under Section 70 will be committed only when the accused damaged the water course without any proper authority. It also says that the owner of the property has a right to deal with his property in any manner he likes provided there is no law or private agreement whittling down that right. In the instant case Smt. Saraswati accused no 4, being the owner of plot nos. 210 and 211, was fully competent to demolish the water channel existing on her mend. There was no such private agreement between the parties whittling down that right nor there is any law precluding them from doing so. For all these reasons the learned Tem porary Civil and Sessions Judge rightly held that the offence under Section 70 was not made out against the accused persons.